21 Sep Ireland Forces DNA Proof of Gay Dads' Parentage

Ireland legalized same-sex marriage the same year the United States did, via a Supreme Court ruling in 2015. But just as is true of the U.S., Ireland has struggled to update its laws to ensure LGBT individuals are treated equally under laws governing citizenship and parentage.

Jay O’Callaghan and Aaron O’Bryan, a gay couple, both hold Irish passports but are permanent residents of Canada. Their son was born in Toronto via egg donation and surrogacy, and the dads want him to hold dual citizenship. But when they applied for an Irish passport for their son, they ran into a wall.

Even though same-sex couples may legally marry in Ireland, the country’s Children and Family Relationships Bill does not cover donor-assisted reproduction for all same-sex families, according to a CTV News report.

Under Irish law, the mother of a child is the person who gives birth to the child, or a female adopter. Meaning, if O’Callaghan and O’Bryan were a male-female couple, they would have no trouble getting Jake an Irish passport.

After a six-month delay, the Irish government notified O’Callaghan and O’Bryan they would have to apply for a declaration of parentage, requiring them to appear before an Irish court and produce DNA evidence of their son’s parentage, Pink News reported, a time-consuming and costly process.

The hitch was, having their baby’s DNA tested was never something O’Callaghan and O’Bryan wanted to do. Like many gay couples who become fathers via egg donation and IVF, both partners submitted sperm to be used in the fertilization process; they do not know which of them is the biological father of their son, and they do not want to know.

As a father of twin boys conceived, with my spouse, via egg donation and IVF, I sympathize with these dads’ dilemma. Like them, Tommy and I never have undergone DNA testing to determine the biological parentage of our boys, and we have no intention of doing so. They are our sons, we are a family, and no genetic test can change that fact.

Unfortunately, if the couple pursue their aim of obtaining dual Canadian-Irish citizenship for their son, they will not be allowed that choice. Under Irish law, the Toronto surrogate and her partner or spouse are considered the parents—even though neither is genetically related to the child. To establish their son’s Irish citizenship, either O’Callaghan or O’Bryan must prove he is the child’s genetic father.

This family’s ordeal in establishing citizenship and parentage in Ireland mirrors the experience of many LGBT parents here in the United States, where laws in many states have not yet caught up to rapid advances in assisted reproductive technology, let alone the new realities of legal same-sex marriage. As we discussed earlier this month, some three years after the U.S. Supreme Court’s 2015 Obergefell v Hodges decision legalizing same-sex marriage in all 50 states, some LGBT intended parents feel surprised and betrayed to learn that, in order to legally protect their families, they must still, in many cases, adopt their own children conceived via IVF and surrogacy.

Yet laws governing adoption, parentage, inheritance, assisted reproduction and reproductive rights have always differed from state to state, with some jurisdictions markedly more restrictive, often posing a minefield, even for married, heterosexual intended parents. Legislation and case law have always lagged behind the societal changes made possible by advanced technology. That is why my firm, International Fertility Law Group, has a network of U.S. and international family law, estate planning and reproductive law attorneys, experienced and current on the law in their local jurisdictions, as a cornerstone of our service to clients.

O’Callaghan and O’Bryan are using the attention their story has generated to spur positive changes in Irish law. We at IFLG applaud their courage and determination to create something good out of a negative experience. But we also urge other LGBT couples and intended parents to become familiar with and consider carefully the laws where your surrogate will give birth, the laws in the country or countries where you wish to register your child’s citizenship, and the laws where you and your family plan to reside, before entering into a surrogacy arrangement. Any attorney experienced in fertility law will want the answers to those questions, so that he or she can guide you in making the best decisions for your family, or to avoid the kind of heart-breaking surprise that this couple experienced.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.